Formalists vs. Pragmatists

The divide over the constitutionality of the individual mandate, reflected by the reaction to the Sixth Circuit’s decision yesterday, boils down to a difference over what “limited” means in the context of enumerated powers.

Proponents of the mandate take a formalistic view of enumerated powers. As long as there is a limit, then the authority of Congress is limited. The limit could be that Congress must act rationally (the view of Justice Breyer and Justice Ginsburg) or the one stated in Lopez and Morrison. They don’t care how strong the limit is.

Foes of the mandate look at Article One, Section 8 in functional terms. The limit to Congress’s powers must have teeth. Limited means “really limited.” Anything else is a sham that is inconsistent with first principles.

We’ll see how this plays out as the other courts of appeals chime in.

Share

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

Bruce, very likely more than you think. Remember that the dissenter in Eldred in the lower court was David Sentelle.

As for Gerard’s broader point, it is an interesting way to look at things. But Justice Breyer is usually thought of as the Court’s leading pragmatist, while Justices Scalia and Thomas are considered formalists.